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Arizona officials use personal e-mail for government business

Arizona's top elected officials and their key staff members used personal e-mail to conduct government business during their transition into office and the months that followed. Gov. Doug Ducey, Attorney

Arizona officials use personal e-mail for government business

Gov. Doug Ducey's staff turned over to The Republic 42 pages of messages dating from shortly after his Jan. 5 inauguration to as recently as May 11, from personal accounts maintained by the governor and his spokesman, Daniel Scarpinato.(Photo: David Kadlubowski/The Republic)

Gov. Doug Ducey, Attorney General Mark Brnovich, Secretary of State Michele Reagan and schools Superintendent Diane Douglas and their aides used their personal accounts for routine matters, such as scheduling and prepping for their new jobs and discussing talking points for public appearances.

Their representatives said that in some instances, it was easier to use personal e-mail because they did not yet have access to the state e-mail system while not at work, and because it was easily accessible on their cellphones. All but Douglas continue to occasionally use their personal e-mail accounts for official business, a practice that is legal but at times controversial.

The Arizona Republic requested state-related correspondence from personal e-mail accounts from those officials, their aides and others following revelations that Hillary Clinton, the Democratic presidential front-runner, maintained a private e-mail account and her own computer server during her tenure as U.S. Secretary of State. Clinton's e-mails were kept secret for years, despite records requests from national media, because the government did not have access to the government-related messages.

Ducey has said it made no sense for Clinton to set up her own server, saying government officials, despite changing technology, "have to follow the law and play by the rules."

Experts say officials in Arizona and across the nation have increasingly turned to personal e-mails or instant messaging apps as a way to try to circumvent public-records laws. Kansas Gov. Sam Brownback uses personal e-mail, according to media reports. Former Florida Gov. Jeb Bush, a Republican likely to run for president, used his personal account while governor to talk about security and military issues. And New York Gov. Andrew Cuomo's administration was criticized after it was reported that top aides used personal accounts; the administration has denied using such accounts for official business.

Arizona law requires officials to keep a record of "official activities and of any of their activities which are supported by monies from this state or any political subdivision of this state." The law says that it is "the duty of each such body to carefully secure, protect and preserve public records from deterioration, mutilation, loss or destruction."

The key is whether the records contain official business that the law demands be preserved and made available for public review.

But it can be difficult for the public to ascertain if they have received all government-related messages communicated via personal devices.

Arizona officials who recently worked at the highest levels of state government said that at times they deliberately avoided creating a public record on sensitive topics and instead opted for face-to-face conversations or phone calls.

"It's as simple as not creating a paper trail," one staffer to former Gov. Jan Brewer explained.

When texting about certain topics to former Gov. Jan Brewer's top aides, one former state agency director deliberately "texted and deleted" messages.

"There's a Japanese word called the 'mokita' — the unspoken truth — the thing that everyone knows but no one talks about," the former director said. "In all those years, no one told me, 'Don't create a public record on this,' but it's an intuitive sense, where you know."

Staffers for Ducey, Brnovich, Reagan and Douglas said their use of personal e-mails is not intended to thwart the state's public-records law.

Officials occasionally used the personal e-mail accounts, staffers said, and often directed members of the public who e-mail them on those accounts to instead use their state accounts. Reagan copied state accounts on e-mails sent from her private account to preserve a public record, her spokesman said.

Attorney Dan Barr, an expert on the state's public-records law, said officials try to avoid creating public records that can be scrutinized by outside entities.

"It's increasing on several fronts — one is, you have the public officials who don't have e-mail at all, or say they don't," he said. "And the idea arose: If you used your own personal e-mails and text messages, those aren't public records. They are."

Barr, whose law partners in Washington, D.C., represent Clinton's presidential campaign, said the courts have repeatedly said records in which government business is transacted are subject to the public-records law. Records also include text messages and correspondence sent via messaging applications.

None of the offices turned over to The Republic text messages or records from messaging applications in which state business was conducted. Representatives said their offices do not use messaging applications.

Similar requests submitted to the Department of Administration yielded correspondence from a staffer who did not have remote access to their work e-mail but needed to write the department's attorney. The employee copied her state e-mail on the exchange to ensure a public record was kept. Almost all of the correspondence was redacted.

The Department of Corrections returned a brief text conversation about routine business.

GOV. DOUG DUCEY

Ducey's staff turned over to The Republic 42 pages of messages dating from shortly after his Jan. 5 inauguration to as recently as May 11, from personal accounts maintained by the governor and his spokesman, Daniel Scarpinato. Other senior aides rarely used personal accounts for state business, Scarpinato said.

The pages contained an e-mail notifying the governor that his staff was announcing the selection of a new state agency head, talking points for a radio interview about the state budget, correspondence between the governor and his staff about social-media posts wishing people a Happy Easter, and logo options for the governor's new business leadership group, Arizona Zanjeros. The e-mails also contained Ducey's remarks for his State of the State address in Tucson and the Legislative Salute Dinner, as well as information inviting Ducey to participate in a roast of former NFL quarterback Terry Bradshaw.

Scarpinato said it can be challenging to not use personal e-mail, given the volume of correspondence sent to the governor and his top aides. He said it was used more often as Ducey and his staff transitioned into office; people who e-mailed the governor's personal account received an auto-response that directed them to go through state channels if the correspondence involved state business.

"When it's used, it's used for fairly trivial things," Scarpinato said of the personal accounts. "Generally speaking, we have protocols in place in the office where, ... as a general rule, we don't use personal e-mail to communicate. And he doesn't use personal e-mail to communicate about state business."

SCHOOLS SUPERINTENDENT DIANE DOUGLAS

Douglas and her top staff turned over to The Republic several dozen pages of e-mails, which included correspondence from two Republican state senators about education-related programs and legislation, outside legal services stemming from the battle over authority over Board of Education staffers, and an e-mail from Tom Horne, former attorney general and schools superintendent, about ethnic studies. The documents also included an invitation to speak to a "tea party" group and a statement to a conservative news site about Douglas' win in the 2014 election.

Michael Bradley, Douglas' chief of staff, said personal accounts were used until top staffers could regularly access state e-mail and calenders. He said Douglas and her staff no longer use personal e-mails.

"We hated using our private e-mail" for work-related matters because it clogged up personal accounts and made it more difficult to respond to public-records requests, Bradley said. "As soon as we got remote access, we didn't use them at all."

SECRETARY OF STATE MICHELE REAGAN

Reagan's office turned over several dozen e-mails that included correspondence with her staff and outside entities. The e-mails included a back-and-forth with the friend of a former state lawmaker about potential state jobs.

Reagan told the woman she could "place calls for you and help you get your foot in the door." Reagan's representative told The Republic it is common for elected officials to direct people to openings in government.

Reagan's staff later helped the woman navigate a website that lists state job openings.

One February e-mail exchange provides insight into Reagan's thoughts on proposed legislation. A bill Republican Sen. Don Shooter introduced would have let public agencies deny "unduly burdensome" requests for records.

Shooter's message, as delivered, was "Michelle (sic) my belle, since you will be out of town, could you and Lee both write a strong letter of support for the bill that I will read in committee in lieu of your testimony."

Reagan wrote to her staff, "You bet we will! I love Shooter's bill."

Other correspondence included discussion about efforts to strengthen voter outreach, invitations to events, and Reagan's decision to not attend Yuma Lettuce Days because she was told they "are 90% winter visitors, so would be a waste of time for us to go."

Matt Roberts, Reagan's spokesman, said the secretary of state uses her personal e-mail because it's easily accessible, or because a supporter has e-mailed her on it.

"She's quite diligent in making sure she 'bccs' (copies) her own work e-mail so it's ... archived," Roberts said.

Brnovich's office also turned over dozens of e-mails, which contained basic information about ongoing lawsuits, talking points for media appearances, links to news stories and videos.

In one, Brnovich discussed the Board of Education dispute between Douglas and Ducey.

"We aren't part of this story," Brnovich wrote. "As we shouldn't be. She's a constitutional officer. We aren't in biz of telling them who they should or shouldn't hire or fire. Go talk to the super."

Ryan Anderson, Brnovich's communications director, said it's easier for staff to use personal e-mail than state e-mail after hours and on weekends.

"Frankly, it's things that we don't want to clog up our official accounts with because they're not relevant to state business," Anderson said.

Reach the reporter at yvonne.wingett@arizona republic.com or 602-444-4712. Follow the reporter on Twitter @yvonnewingett.